The receiver-general, having regard probably to the destination of the Ella Warley, St. John's being the port for which blockade-running vessels were in the habit of taking clearances, refused to give the usual permission unless authorized by the governor. Thereupon Messrs. Adderly wrote to the governor explaining that all they asked for was to be dispensed from the formality of landing the goods on the wharf, and then reshipping them; a requisition which had on previous occasions been done away with by the customs authorities; and stating that the receiver-general admitted that he had no ground for his objection, "being fully of opinion that the object of the law could be carried out. and the cargo as easily checked from one vessel to another as if landed." The governor, with the consent of his council, granted the permission, and indeed there seems no sufficient reason why he should have refused it. He could not in any case have prevented the goods being put on board the Ella Warley; he could only insist on their being landed on the wharf in transitu. Mr. Heyliger, who had but just arrived in the colony, probably misunderstood the nature of the concession, and may not have been sorry to exaggerate it to his superiors. The permission having been granted in the case of the Eliza Bonsell, may possibly have also been given in other cases, but it is difficult to understand on what principle it can be alleged to constitute a "violation of the duties of a neutral." Complaint is made that the vessels engaged in running the blockade, and leaving Nassau for that purpose, were allowed to clear out for St. John's, New Brunswick, though it was well known that their destination was a southern port. But there is no means of controlling vessels in this respect. The nature and operation of a clearance is explained in the British case: Clearance signifies the final official act by which the proper officer of customs notifie that all has been done which the law requires to be done before the departure of ship and cargo. It is purely for customs purposes, the main objects being to protect the revenue, and to secure statistics as to the number of ships and quantity of merchandise entering and leaving British ports. As there are in ordinary times no restrictions or duties on the export of articles of any kind from the United Kingdom, no rigid inspection is exercised by the customs authorities over the general nature of the goods shipped on board vessels in British ports. The attention of the authorities is mainly directed to the shipment of those articles on which an exemption from import duties otherwise payable, or a remission of import duties already paid, is claimed on the ground of their exportation abroad. The object of the inspection is to ascertain that the goods of this nature stated to be thus exported are really shipped and carried away on board the vessel. The agents who ship such goods furnish the customs department with statements in the form of shipping-bills, of the amount and nature thereof, and it is the duty of the examining officer to ascertain that the packages placed on board the vessel correspond with these statements. Before starting on his voyage the master of the vessel is bound to produce a paper called a content, giving the number and description of any packages of merchandise shipped on board, on which exemption from or remission of duty is claimed, but merely specifying any other articles as "sundry packages of free goods." The master has also to produce a victualing bill, enumerating the amount of stores liable to duty, (such as tea, spirits, tobacco, and the like,) which he has shipped for the use of his crew. These papers are compared with the shipping bills and certificates already in the possession of the customs authorities, and if they are found to tally, a label, signed and sealed by the examining officer and collector, is affixed to the victualing bill and certificates, and these papers are delivered to the master as his clearance. It is true that, for statistical purposes, the agents to the master of the vessel are required to furnish to the customs department a list, called a manifest, giving the number and description of all packages of goods, whether liable to duty or not, shipped on board the vessel, and the shipping agents or exporters are also required to furnish specifications of all goods, described by the master on his content as "sundry packages of free goods," and subsequently further described in his manifest; but the law does not British Appendix, vol. v, p. 30. require that these particulars should be given before the vessel sails; it is complied with provided they be furnished within six days after she has cleared. Previously to the year 1867, no penalty was attached by law to the departure of a vessel for foreign ports without a clearance provided she was in ballast, and had on board no stores except such as were free or had paid duty. Since that date, however, clearance has been required in these as well as in other cases. A clearance may not be granted until the master of the ship has declared the nation to which he affirms that she belongs; and a ship attempting to proceed to sea without a clearance may be detained until such a declaration has been made. The officer, however, cannot question, or require proof of, the truth of the declaration. As to the destination of ships sailing from the United Kingdom, the officers of customs have little or no means of ascertaining this beyond the information which the master or owner gives on entering outwards. It frequently happens that a vessel entered outwards for a specified destination changes her course when at sea, and proceeds to a different destination. There are no means of preventing this.' It these vessels had cleared out for a confederate port, they must equally have been allowed to leave. It has been argued that the vessels employed in conveying contraband of war for the use of the confederate government should have been considered as transports, and therefore as contravening the foreign-enlistment act, and therefore that they should have been stopped. If this is meant to be said figuratively, it comes to nothing. If it is meant that the vessels were actually built or fitted out for, and made over to, the confederate government, to be used by them as transports-in which case only they would come within the foreignenlistment act-the answer is, that there is not only no evidence of anything of the kind, but there is every reason to believe that the contrary is the case, and that they remained the property of the original owners, who found the employment of them in this trade profitable, notwithstanding that many of them fell into the hands of the blockading ships. It is plain, from the letter before cited, that this is the view that Mr. Consul Morse took of the matter. Angry complaints are made in the American documents of the sympathy exhibited at Nassau, and in several other British col- Sympathy in the col onies, toward the confederate cause. onies. When it is asserted, in particular instances, that this favorable feeling toward the insurgent States led to partiality, inconsistent with a due observance of neutrality on the part of the authorities, it will be better to deal with these charges when I come to the particular cases in which it is alleged to have occurred. As regards the inhabitants of these places generally, it seems to me that it was quite natural that, at the Bahamas and Bermuda, and possibly in the other West India Islands, the tide of public feeling should run strongly in favor of the confederates. These colonies lay more or less contiguous to the southern coast. What trade they had had before with the United States was principally with the South. But what was more likely to operate in favor of the latter was the active trade which the transmission of ships and cargoes to the southern ports suddenly brought to them. Human nature is pretty much the same at Nassau as it would be under similar circumstances at London or New York. We are apt to look with favor on those who bring us business or promote our wealth, or who in any way cause the sun of prosperity to shine upon us. No government can control, or ought to endeavor to control, or to interfere with, public feeling in such cases, if leading to no violation of the law. Independently, however; of any influence exercised by local interest, I cannot doubt that, as the great contest went on, and while the infe riority of the means of upholding it on the part of the South became more and more manifest, their gallantry and courage shone out the more brightly in continuing the unequal struggle, there did arise the British Appen lix, vol. v, p. 30. sympathy which enduring courage struggling with adversity never fails to inspire. And I cannot help thinking that the haughty and offensive tone assumed by many of the representatives of the United States helped greatly to turn the tide of public feeling in favor of their opponents. Men refused to see in the leaders of the South the "rebels" and the "pirates" held up by the United States to public reprobation, and thus the effect which a more generous appreciation of the position and qualities of their adversaries might have had in neutralizing the feeling in their favor, tended only to increase it. Be this as it may, I assert that, whatever individual persons may have thought or felt, Great Britain as a nation was throughout the contest between the Northern and Southern States honestly desirous that perfect neutrality should be maintained, and that the Queen's gov ernment, from the beginning to the end, were animated by the honest desire faithfully to discharge the duty which their position as the ministers and servants of a great sovereign, pledged to neutrality in the face of the world, imposed upon them. Application to par Having thus passed in review the general heads of complaint put forward in the pleadings of the United States, for the purticular vessels. pose of vindicating the British government and British authorities from what appear to me unfounded and unjust aspersions, I proceed to the cases of the individual ships, as to the equipment of which it is alleged that the British government were wanting in diligence. But it is here, when we proceed to apply, practically, the test of due diligence to the conduct of the government, that the anomaly of the present position, to which I adverted in the outset, makes itself sensibly felt. As I have shown upon abundant authority, the equipping of a ship for sale to a belligerent, in the way of trade, was at the time in question no offense against the law of nations, or a violation of neutrality, though it was an offense against the municipal law of Great Britain. The government of Her Majesty, though like every other government it was bound to prevent any known violation of the law, was under no obligation to a belligerent to enforce the law for his benefit, and incurred no liability to such belligerent for not doing so, so long as the law was not enforced against the latter any more than against his enemy. Any hostile expedition permitted to leave the shores of Great Britain, which the government, by the exercise of reasonable diligence, could have prevented, would have amounted to a breach of neutrality, for which it might have been held responsible. But for the mere equipping of a vessel, by ship-builders, in the way of trade, though intended for a belligerent, the government would not be responsible: and though every government is no doubt bound to prevent infractions of the law, so far as it knows of them and can prevent them, still this general duty which it owes to its own country is obviously a very different thing from the responsibility it incurs as representing the state, in relation to a foreign power. In the one case, the maintenance of the law is left to the ordinary authorities, and to the individuals who have occasion to seek protection or redress from its operation; in the other. the action of the government by its immediate officers becomes neces sary for its own protection. No doubt, as a matter of comity, and from a sense of justice, a government would pay ready attention to the representatives of a belligerent power complaining of an infraction of the municipal law in a matter in which the interests of the belligerent were affected-more especially in a matter lying, as it were, on the confines of municipal and international law-and would call into action the pre ventive powers it possessed, to keep the law from being broken. But, under such circumstances, it might fairly leave to the representative of the belligerent to make out a case for the application of the law, just as it is left so to do to an ordinary individual who desires to put the law in motion in order to obtain redress on his own behalf. Hence, no doubt, had arisen the practice, common to the governments both of the United States and Great Britain, of requiring the representative of a belligerent power, invoking the aid of the government, to produce evidence by which the action of the executive, when brought to the test of judicial inquiry, can be justified and upheld. It is obvious that the degree of active diligence which could reasonably be expected from a government under such circumstances, is very different from what it would be bound to exercise in order to prevent a violation of neutrality according to the law of nations, for which, as a government, it would be properly responsible to a belligerent state. It seems to me that though by the treaty of Washington it must be taken that Great Britain was bound to use due diligence to prevent the equipping of ships as a matter of neutral obligation, and not as a mere matter of municipal law, yet that, in determining whether due diligence was then applied or not, we must look to the relative position of the parties at the time, and insist on no more than would have satisfied the exigency of obligations then existing. Morally, in judging the conduct of the government of that time, we are assuredly bound to do so. CASE OF THE FLORIDA. The Florida. The following are the facts relating to the Florida, as they are to be gathered from the cases, counter cases, arguments, and printed evidence supplied to the tribunal: At Liverpool. This vessel, originally named the Oreto, was no doubt built for war. The contract for her construction was made by Bullock, who, it has since become known, (though at the time the fact was altogether unknown to Her Majesty's government,) was an agent of the Confederate States, with Fawcett, Preston & Co., of Liverpool, by whom the contract for the construction of the hull was again sublet to Miller and Sons, shipbuilders at that port. The attention of Mr. Dudley, the United States consul at Liverpool, was attracted to the vessel as early as the end of January, 1862. In dispatches to Mr. Seward, of the 24th of January and 4th of February, he calls attention to this steamer under the name of the Oritis, or Oretis. In the letter of the 24th of January he says: "She is reported for the Italian government, but the fact of the machinery being supplied by Fawcett & Preston, and other circumstances connected with it, make me suspicious, and cause me to believe she is intended for the South." On the 4th of February he writes to Mr. Seward as follows: In my last two dispatches I called attention to the iron screw steam gun-boat Oreto, or Oritis, being built at Liverpool, and fitted out by Fawcett, Preston & Co. She is now taking in her coal, and appearances indicate that she will leave here the latter part of this week without her armament. The probabilities are she will run into some small port and take it and ammunition on board. This of itself is somewhat suspicious. They pretend she is built for the Italian government; but the Italian consul here informs us that he knows nothing about it, has no knowledge whatever of any vessels being built for his government. There is much secrecy observed about her, and I have been unable to get anything definite, but my impressions are strong that she is intended for the Southern Confederacy. I have communicated my impressions and all the facts to Mr. Adams, our minister at London. She has one funnel, three masts, bark-rigged, eight port-holes for guns on each side, and is to carry sixteen guns.? 1 United States Documents, vol. vi, p. 214. It thus appears that, by the 4th of February, Mr. Dudley had put Mr. Adams in possession of such information as he possessed concerning this vessel. The letter of Mr. Dudley to Mr. Adams has not been published among the American documents; but it is evident that Mr. Adams did not consider the information communicated to him sufficient to warrant any application to Her Majesty's government, for none was made by him on the subject of this vessel till the receipt of another letter from Mr. Dudley, a fortnight later. Indeed, Mr. Dudley expressly states that he was unable to get anything definite about the vessel. He speaks only of suspicions and impressions. He had nothing to communicate beyond reports and rumors. Amongst other things stated by Mr. Dudley, he mentions that he had made inquiry of the Italian consul at Liverpool, who had told him that he knew nothing of the vessel. But if, as was stated by the builders, the order for the vessel had been given by Thomas Brothers, of Palermo, the Italian consul at Liverpool might have remained without information on the subject; and Mr. Dudley, while mentioning what had passed between him and the Italian consul to Mr. Seward, does not appear to have mentioned it to Mr. Adams. The fact was unknown to Her Majesty's government. On the 17th of February, Mr. Dudley again writes to Mr. Adams about the Oreto as follows: The gun-boat Oreto is still at this port. She is making a trial trip in the river to-day. No armament as yet on board. She has put up a second smoke-stack since I wrote you. She therefore has two funnels, three masts, and is bark-rigged. I am now informed that she is to carry eight rifled cannon, and two long swivel-guns on pivots so arranged as to rake both fore and aft. No pains or expense has been spared in her construction, and when fully armed she will be a formidable and dangerous craft; in strength and armament quite equal to the Tuscarora, so I should judge from what I learn. Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co.. and that they own the vessel. I have obtained information from many different sources, all of which goes to show that she is intended for the Southern Confederacy. I am satisfied that this is the case. She is ready to take her arms on board. I cannot learn whether they are to be shipped here or at some other port. Of course she is intended as a privateer. When she sails, it will be to burn and destroy whatever she meets with bearing the American flag.1 In a postscript he adds, "The gun-carriages for the Oreto, I have just learned, were taken on board on Friday night last, in a rough state, and taken down in the hold. Fraser, Trenholm & Co. have made advances to Fawcett, Preston & Co., and Miller the builder.” This statement as to the gun-carriages was wholly incorrect. Having received the letter of Mr. Dudley, Mr. Adams writes, inclosing it to Lord Russell, as follows: LEGATION OF THE UNITED STATES, MY LORD: I have the honor to submit to your consideration the copy of an extract of a letter addressed to me by the consul of the United States at Liverpool, going to show the preparation at that port of an armed steamer evidently intended for hostile operations on the ocean. From the evidence furnished in the names of the persons stated to be concerned in her construction and outfit, I entertain little doubt that the intention is precisely that indicated in the letter of the consul, the carrying on war against the United States. The parties are the same which dispatched the Bermuda, laden with contraband of war at the time, in August last, when I had the honor of calling your lordship's attention to her position, which vessel then succeeded in running the blockade, and which now appears to be about again to depart on a like errand. Should further evidence to sustain the allegations respecting the Oreto be held ne 1 British Appendix, vol. i, p. 1; United States Documents, vol. vi, p. 216. |